By JAN CORBETT
The Law Commission thinks it is becoming too difficult for politicians to defend their reputations and is recommending those same politicians change the defamation laws.
But lawyers defending the defamation case that sparked these recommendations - former Prime Minister David Lange suing political columnist Joe Atkinson and North and South magazine - worry that the Law Commission is advising on the law before the High Court hears the case.
This five-year-old case has spawned two landmark Appeal Court rulings extending the qualified privilege defence to the media's coverage of national politics, tipping the freedom of speech scales in the media's favour.
Since its last ruling issued in June, journalists need no longer fear being sued by politicians for getting a story wrong providing they believed the story to be true at the time and acted reasonably when compiling it. It is up to the politician to prove otherwise. But in its report on the ongoing case tabled in Parliament yesterday, the Law Commission wants the scales adjusted to make it fairer for politicians.
It wants journalists to have to prove they acted reasonably, arguing it would be impossible for a politician to gather evidence about how a story was compiled.
It also recommends the publication lose the qualified privilege defence if it refuses to publish a letter or statement from the offended politician explaining or contradicting the original story.
Stephen Mills, a lawyer acting for Dr Atkinson and the magazine, said it was of "very grave concern" that nothing in the Law Commission's report alerts the Justice Minister to the fact the case is still before the courts and that any law change would "have a direct and very significant effect on the current litigation."
Despite Mr Lange's losing the debate on qualified privilege at the Appeal Court, he is still fighting the case in the High Court.
Mr Mills was also concerned "there is nothing in the report that draws attention to the fact that [its recommendations] would reduce the freedom of expression rights that now exist as a result of Court of Appeal decisions."
Law Commission President Justice David Baragwanath defended the timing of the report's release, saying the commission is not adjudicating on the Lange case, merely advising Parliament on the law.
Justice Minister Phil Goff is overseas and unavailable for comment.
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